Facebook. Instagram. Twitter. Snapchat. As the list of social media platforms continues to grow and people increasingly choose to use them as communication vehicles, more and more employers are drafting and implementing policies seeking to regulate their employees’ posted content and messaging on those sites. A recent National Labor Relations Board (NLRB) advice memo, however, is another reminder that companies – including non-union ones – should keep in mind there are legal parameters that come into play in this sphere.

At issue in the case was a company’s social media policy that prescribed certain expectations for employees on social sites and proscribed various types of statements on such platforms. The board ultimately concluded two provisions in the policy ran afoul of the National Labor Relations Act (NLRA).

The first provision found to be unlawful stated:

“Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that are false about Friendship Ridge, fellow employees, owners, residents, suppliers, people working on behalf of Friendship Ridge.”

The NLRB determined this was unlawful because “Board and court precedent has long recognized that employees have the right to make a wide variety of statements in the context of a labor dispute, including inaccurate statements, as long as those statements do not constitute malicious defamation.” In other words, the proscription here was too broad.

The second provision held to be unlawful provided:

“Maintain the confidentiality of Friendship Ridge private or confidential information. Do not post internal reports, policies, procedures or other internal business related confidential communications.”

This was found to violate the NLRA because “the requirement that employees keep confidential the Employer’s ‘policies, procedures’ would reasonably be interpreted by employees to include information about their terms and conditions of employment.” Under the NLRA, employees have the presumptive right to disclose and discuss the terms and conditions of their employment – such as wage rates – so this too was overbroad.

While having a social media policy may make sense, it is important for any company that decides to maintain such a policy to keep in mind that there are limits on what can be proscribed.

The post Uh-Oh: Company’s Social Media Policy Ruled Unlawful appeared first on The National Law Forum.

As social networking has become entrenched as a tool for doing business and not just a pastime of our social lives, employers, government agencies, and even academia have taken big steps in 2014 to define how social media can and cannot, or should and should not, be used. Below is a summary of some of the big developments in social media in the workplace this year.

The EEOC Turns Its Attention to Social Media

The Equal Employment Opportunity Commission has turned its attention toward social networking, meeting in March to gather information about social media use in the workplace. To no surprise, the EEOC recognized that although using social media sites such as LinkedIn could be a “valuable tool” for identifying employment candidates, relying on personal information found on social networks, such as age, race, gender, or ethnicity, to make employment decisions is prohibited.

More controversially, the EEOC expressed concern that employers’ efforts to access so-called “private” social media communications in the discovery phase of discrimination lawsuits might have a “chilling effect” on employees filing discrimination cases. However, it is unclear how the EEOC might prevent employers from getting this information if it is relevant to a plaintiff’s claims. It remains to be seen what steps the EEOC might take to address this “chilling effect.”

 The NLRB Continues to Refine Its Position on Social Media Policies

The National Labor Relations Board has spent the past few years attacking social media policies as overbroad, but perhaps a shift in that policy is at hand. This summer, an NLRB administrative law judge upheld a social media policy that discouraged employees from posting information on social networks about the company or their jobs that might create morale problems. The ALJ held that the policy did not prohibit job-related posts, but merely called on employees to be civil in their social media posts to avoid morale problems. The ALJ’s finding is at odds with recent NLRB decisions, which have gone much further to limit any policies that might affect employees’ rights under the National Labor Relations Act. While it is unclear whether this holding is an outlier or a shift in the NLRB’s approach, it brings with it some hope that the NLRB may be moving toward a more pro-employer stance.

States Continue to Limit Employers’ Access to Employees’ Social Media Accounts

State governments also are getting involved with social media regulation. In April, Wisconsin became the newest state to pass legislation aimed at protecting employees’ social media accounts, passing the Social Media Protection Act. The Act bars employers, schools, and landlords from requiring their employees, students, and tenants to produce their social media passwords. Significantly, the Act does not ban them from viewing social media posts that are publicly accessible.

Wisconsin was not alone in enacting legislation to protect social media passwords this year, as Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island and Tennessee enacted similar laws during 2014 and 12 other states did so in previous years. While not every state has passed such legislation, it is clear that state governments increasingly will not tolerate employers asking employees or applicants for access to their private social networking accounts. Employers should be mindful of their state laws before seeking social media information that might be protected.

Academia is Drawing Its Own Conclusions Regarding Social Media in the Workplace

Federal and state governments are not the only institutions weighing the implications of social media in the workplace. University researchers also are studying employers’ stances on social media – a North Carolina State University study concluded that applicants tend to have a lower opinion of employers that looked at their social media profiles before making a hiring decision, and a Carnegie Mellon University study concluded that employers risked claims of discrimination by reviewing applicants’ social media profiles, based on employers being more likely to screen out candidates based on their personal information such as ethnicity.

While these studies weigh against employers searching applicants’ social media before making hiring decisions, there is certainly logic to the contrary, as employers are entitled to view publicly-accessible information about their applicants, and thorough employers will want to learn as much as they can to do their due diligence in making important hiring decisions.

Laws, best practices, and public opinion regarding social media in the workplace will continue to evolve in 2015. Employers would be wise to look at the most recent developments before making any major decisions affecting their social media policies and practices.

The post The Year in Social Media: Four Big Developments from 2014 appeared first on The National Law Forum.

NLRB: Latest Decisions Addressing Social Media Policies and Activities

Within the past several months, the National Labor Relations Board (“NLRB“) has issued four precedent-setting opinions addressing the legality of an employer’s use of social media as a basis for taking adverse employment action. These decisions apply to both unionized and non-unionized workforces.

The key issue in each of these cases was whether the employer’s actions compromised the right of employees to engage in “protected concerted activities” for the purpose of their “mutual aid and protection.” However, as noted in a prior alert, recent federal case law could void all NLRB decisions dating back to January 4, 2012 (including those discussed below). Until there is clarity the NLRB decisions continue to be significant in shaping social media use, policy and practice.

On April 19, 2013, the NLRB, in Design Technology Group, LLC, found that an employee’s Facebook posts that criticized a manager’s handling of employee concerns were a “classic connected protected activity” under the National Labor Relations Act (“the Act”).

In that case, workers had approached their manager about closing the store they worked in at 7 PM instead of 8 PM, because of safety concerns. The manager advised that she would discuss those concerns with corporate officials, but the issue was never resolved. Subsequently, two employees posted messages on Facebook that were critical of how the manager handled that issue. Another employee showed the manager those posts and six days later, both employees who made the critical Facebook posts were fired by the manager.

The NLRB determined that the Facebook posts were part of the employees’ efforts to convince their employer to close the store earlier in the evening, based on their concerns about working late in an unsafe neighborhood. The NLRB found that those posts were protected under the Act and that the employees’ terminations constituted unfair labor practices.

Design Technology comes on the heels of three other NLRB social media rulings issued late last year.

In Hispanic United of Buffalo (December 14, 2012), the NLRB held that the termination of five employees for violating an employer’s policies on the basis of their social media activity was unlawful. In that case, five employees posted comments on Facebook that were critical of a co-worker who was scheduled to meet with and complain to management about their work performance. The employer terminated the five employees for “bullying and harassing” the co-worker in violation of its policies.

Hispanics United of Buffalo applied settled NLRB law regarding oral communications among co-workers to the social media context. Under NLRB precedent, employees’ comments regarding the terms and conditions of their employment are protected if their comments are “concerted” — meaning they are “‘engaged in, with or on the authority of other employees,” not only by “one employee on behalf of himself.” Finding the actions of these employees to be protected, the NLRB set a relatively low threshold for interpreting social media activity as protected concerted activity under the Act.

The Hispanics United decision is especially controversial because it may conflict with an employer’s competing obligation under federal and state discrimination laws to prevent workplace harassment. And, the decision may ultimately be in conflict with workplace anti-bullying laws in those states where such legislation is being actively considered. In Karl Knauz Motors, Inc. (September 28, 2012), the NLRB ordered another employer to rescind its social media policy. In that case, the employer terminated the employee for multiple reasons, including violation of the employer’s “Courtesy” rule requiring employees to be “courteous, polite and friendly” to customers, vendors, suppliers and fellow employees and not to use “language which injures the image or reputation of the Dealership.”

The NLRB held that the “Courtesy” rule violated the NLRA because employees could “reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language’ which injures the image or reputation of the Dealership as encompassing Section 7 activity.” However, the NLRB upheld the employee’s termination, finding it was not motivated by protected concerted activity, but rather was solely based on the employee’s Facebook postings that did not relate to the terms and conditions of his or any other employee’s employment. The NLRB did not address whether other posts would be protected by the Act.

In Costco Wholesale Corp. (September 7, 2012), the NLRB ruled that an employer’s overbroad social media policy violated the National Labor Relations Act because it prohibited employees from posting statements “that damage the Company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement.” The NLRB ordered Costco to rescind the policy based on its finding that the policy inhibited employees from engaging in protected concerted activity.

NJ Legislative Update: Proposed Law Seeks to Protect Employee and Job Applicant Passwords

A-2878, a bill that prohibits employers from requiring, or requesting, a current or prospective employee to reveal, as a condition of employment, his or her user name, password or other means of accessing the employee’s personal social media account, has passed both houses of the NJ Legislature and is awaiting further action by Governor Chris Christie. While it is not clear as of this writing whether Governor Christie will sign or veto this bill, the implications to employers of this potential new law are far reaching.

If enacted, this bill would prohibit employers from even asking an employee or prospective employee whether he or she has a profile on a social media site. In addition, the bill would prohibit employers from requiring prospective employees to waive or limit any protection granted to them under the law as a condition of applying for or receiving an offer of employment. It provides for a $1,000 civil penalty for the law’s first violation and $2,500 for each subsequent violation. If Governor Christie signs this bill into law, New Jersey would join other states that have enacted legislation preventing employers from requesting social media access information, including Arkansas, California, Delaware, Illinois, and Michigan, though it would be the first state to prevent employers from inquiring if employees or applicants have a social media account.

Notably, the bill does not prevent employers from performing their own online search to determine if a prospective or current employee is on a social media site. Accordingly, if a social media account is publically available, an employer would not run afoul of this proposed law by independently viewing an employee’s or prospective employee’s social media account. This type of activity could have other potential pitfalls associated with it however, such as learning protected class information about applicants.

We will continue to monitor the signing status of this bill.

What These Decisions and the Prospective NJ Statute Mean to Employers

In light of the foregoing, we recommend the following:

• Employers should review and consider revising social media polices and hiring practices to address the NLRB decisions, the new NJ legislation, if enacted, and EEO issues associated with searches on applicants.
• With respect to policies, employers should ensure that prohibitions placed on employees’ communications do not prohibit employees’ rights to engage in protected concerted activity.
• Employers should continue to exercise caution when disciplining or terminating any employee based on his/her social media activities and should also consider training its managers in this area so that they do not inadvertently run afoul of these laws.
• It is important to consult with counsel to consider whether an employee’s comments or posts would be deemed to be protected concerted activity under the Act before any disciplinary action is taken by the employer based on those comments or posts.

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There is no denying that the NLRB has recently devoted significant attention to employee’s use of social media.  Since August 2011, the Board’s Acting General Counsel, Lafe Solomon, issued three reports outlining his view of how the NLRA applies to employers’ social media policies and employees’ social media postings.  Click here and here for our commentary on those GC reports and for links to the reports themselves.  Until earlier this month, however, the Board itself had not weighed in on social media policies.

On September 7, the NLRB issued a Decision and Order (which you can access here) invalidating Costco Wholesale Corporation’s electronic posting rule, found in its employee handbook, that prohibited employees from making statements that “damage the Company, defame any individual or damage any person’s reputation.”  With little analysis, the Board found Costco’s policy overly broad, concluding that “the rule would reasonably tend to chill employees in the exercise of their [NLRA] Section 7 rights,” as employees would “reasonably construe the language to prohibit Section 7 activity.”  Section 7 of the NLRA provides to all employees—unionized and non-unionized—the right to engage in protected “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Such protected concerted activity includes, for example, the right to protest an employer’s treatment of its employees or other working conditions.

The Costco decision adopts the legal reasoning set forth in the three GC reports, much of which is based upon traditional principles developed prior to the advent of social media as we know it.  And, similar to the three GC reports, the Board’s decision in Costco fails to articulate any social media-specific criteria to assist employers in crafting policies that do not inhibit employee rights under the NLRA,  although it does offer a couple of hints.

First, the Board distinguished prior cases addressing rules prohibiting employee “conduct that is malicious, abusive or unlawful,” including rules concerning employees’ “verbal abuse,” “profane language,” “harassment,” and “conduct which is injurious, offensive, threatening, intimidating, coercing, or interfering with” other employees. Criticizing Costco’s electronic posting rule, the Board stated that its social media policy “does not present accompanying language that would tend to restrict its application.”  If Costco had been more specific, then, by providing examples of prohibited conduct, its policy may have passed muster.  .  In doing so, employers should focus on the types of electronic postings that they truly seek to prohibit, such as defamatory, harassing or other egregious comments, or disclosure of employer trade secrets, proprietary information, or co-workers’ private information.

The second hint dropped by the Board in Costco is the suggestion that an employer’s inclusion of a savings clause or disclaimer may protect the employer from allegations that a social media policy inhibits employees’ protected concerted activities.  The Board concluded that Costco’s “broad” prohibition against making statements that “damage the Company” or “damage any person’s reputation” “clearly encompasses concerted communications,” but continued by noting that “there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.”  This statement signals that the Board may have found Costco’s electronic posting rule acceptable had the rule included language specifically exempting protected concerted activities under the NLRA, which is in contrast to the GC’s position on such savings clauses.

As we noted in our previous postings on the subject, in light of the Board’s clear stance on social media policies (now confirmed in its Costco decision), and its application to both unionized and non-unionized employers, we recommend that all employers rigorously review their social media policies to ensure that they do not contain “broad” prohibitions that would not survive NLRB scrutiny.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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Social media continues to be in the news.  The National Labor Relations Board (NLRB) issued an “updated” summary of social media cases earlier this year and social media continues to find its way into court decisions.

In 2011, the NLRB’s General Counsel issued a summary of 14 social media cases handled by that office.  On January 24, 2012, the General Counsel issued an updated summary covering another 14 cases.  The General Counsel’s position in these cases is that social media policies (or any other policies) that may “reasonably chill” employees in the exercise of their rights under the National Labor Relations Act (“Act”) are unlawful.  Here are the high points from the updated summary:

• The General Counsel continues to find employer policies and work rules to be unlawfully broad when employees may reasonably view them as prohibiting conduct protected under the Act.  For example, work rules or policies prohibiting “insubordination or other disrespectful conduct” and “inappropriate conversation” were held to be unlawfully broad because employees might think that they cannot join together to complain about their terms and conditions of employment, which is protected activity under the Act.
• Importantly, the General Counsel’s Office rejected a “savings clause” in a social media policy designed to prevent the policy from being overly broad.  The employer’s social media policy stated that “it would not be interpreted or applied so as to interfere with” employee rights under the Act.  The General Counsel found this language did not “save” the policy from being overbroad because an employee could not reasonably be expected to know that the clause would apply to discussions the employer deems inappropriate under the policy.  In light of the General Counsel’s approach, employers should narrowly tailor their social media policies rather than attempt to use “savings” language to fix overly broad policies.
• On the other hand, the General Counsel found an employer’s “amended” social media policy to be lawful because it prohibited conduct that was “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”  The General Counsel found the policy lawful because employees would not reasonably construe the policy’s language to prohibit conduct protected by the Act.
• Individual gripes by employees are not protected activity.  Thus, the General Counsel found in several cases that employers did not violate the Act by discharging employees who complained about their employment on social media pages because they were acting solely on their own behalf rather than on behalf of themselves and other employees.
• Employees can go overboard in their criticisms, however, and lose the protection of the Act.  Language that is “opprobrious,” or sufficiently “disloyal, reckless, or maliciously untrue” may remove the activity from protection, depending upon the circumstances.

In addition to the NLRB’s attention to employee activity, courts and arbitrators are increasingly addressing social media.  Here are just a few recent examples:

• A federal district court in Illinois ruled that an employee, a marketing director for an interior design firm, could proceed with federal Stored Communications Act and Lanham Act claims against her employer based on her co-workers’ unauthorized use of her Facebook and Twitter accounts to promote the employer.  Maremont v. Susan Fredman Design Grp., No. 10C 7811 (N.D. Ill. Dec. 7, 2011).
• A federal court in Washington ruled that a trial was necessary to determine whether an employee, who had been on leave for treatment of depression, was unlawfully discharged due to her suicidal comments made via social media.  Peer v. F5 Networks, Inc., No. C11-0879-JCC (March 19, 2012).
• An arbitrator denied a grievance challenging the discharge of a Head Start teacher who started a closed Facebook page to “gripe” about employees, parents, and students at the Head Start program.  Although the members of the invite-only group complained about work, they were also exceedingly profane, many of the posts were not connected to working conditions, and, most importantly, there was “nothing about the conversations that would lead to the conclusion that [the employees] were seeking to band together to take action to address their workplace concerns.”  Vista Neuvas Head Start, 129 LA 1519 (VanDagens, 2011).
• A federal court in California held that a mobile news website company sufficiently stated claims for negligent and intentional interference with prospective economic advantage by alleging that a former employee appropriated a company Twitter account that drove traffic to its website.  PhoneDog v. Kravitz, No. C 11-03474 MEJ (N.D. Cal. Jan. 30, 2012).
• An NLRB administrative law judge recently ruled that a “Jimmy John’s” franchisee violated the Act when an assistant manager posted the telephone number of a known union supporter on an anti-union Facebook page and encouraged others to “text” him to let him know “how they feel.”  The ALJ believed this post amounted to an invitation for other anti-union co-workers to harass the employee in retaliation for this union activity.  Jimmy John’s, 18-CA-19707 (April 20, 2012).

Employers must act carefully when issuing disciplinary action in connection with social media activity.  Seeking legal advice is important because, as shown above, employee social media activity implicates numerous areas of employment law.

© 2012 Varnum LLP

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It is essential for employers to develop a social networking policy, especially in light of the many legal issues that may arise. Employers must consider the many goals that the policy intends to cover, such as:

• Protecting the company’s trade secrets, confidential, proprietary and/or privileged information;
• Protecting the company’s reputation;
• Protecting the privacy of employees; and
• Establishing guidelines for whether use of social networking sites during working hours is permitted, and if so, under what circumstances.

Employers must also consider the parameters in developing a new policy, such as:

• Urging employees to go to human resources with work-related issues and complaints before blogging about them;
• Setting forth the potential for discipline, up to and including termination, if an employee misuses social networking sites relating to employment;
• Establishing a reporting procedure for suspected violations of the policy;
• Enforcing the policy consistently and with regard to all employees;
• Reiterating that company policies, including harassment and discrimination policies, apply with equal force to employees’ communications on social networking sites;
• Reminding employees that the computers and email system are company property intended for business use only, and that the company may monitor computer and email usage; and
• Arranging for employees to sign a written acknowledgment that they have read, understand and will abide by the policy.

As seen is the October 14th issue of Business Lexington

© 2011 Dinsmore & Shohl LLP. All rights reserved.

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